Robinson v State of Queensland

SUPREME COURT OF QUEENSLAND

CITATION:

Robinson v State of Queensland [2017] QSC 165

PARTIES:

MARY-ROSE ROBINSON

(Plaintiff)

v
STATE OF QUEENSLAND

(Defendant)

FILE NO/S:

SC No 2 of 2014

DIVISION:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

8 August 2017

DELIVERED AT:

Cairns

HEARING DATES:

12-16 September 2016, 1-2 December 2016, 6 March 2017, 21 June 2017.

JUDGE:

Henry J

ORDERS:

1. Judgment for the plaintiff in the sum of $1,468,991.11.

2. I will hear the parties as to costs, in the event they are not earlier agreed, at 10 am on 1 September 2017.

CATCHWORDS:

TORTS — NEGLIGENCE — ESSENTIALS OF ACTION FOR NEGLIGENCE — SPECIAL RELATIONSHIPS AND DUTIES — EMPLOYER AND EMPLOYEE — where plaintiff alleged an accumulation of episodes of potential breach of duty — where employer failed to conduct timely and determinative action regarding vexatious complaints against plaintiff — where plaintiff experienced repeated managerial mistreatment — where plaintiff suffered psychiatric injury — whether the defendant corporation knew or acting reasonably ought to have known of the need to do that which it failed to do — whether the plaintiff has proved that but for the defendant’s breaches the plaintiff’s psychiatric injury would not have occurred — where the court held such breaches did occur — where court held that plaintiff’s psychiatric injury would not have occurred but for the defendant’s breaches

Uniform Civil Procedure Rules 1999 (Qld) r 149(1)(e)
Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 305B, 305D, 306O, 306P

Workers Compensation and Rehabilitation Regulation 2014 (Qld) schs 7, 9, 11

Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, applied
Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, applied

New South Wales v Lepore (2003) 212 CLR 511, cited

Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486, applied
Strong v Woolworths Limited (2012) 246 CLR 182, applied
Tame v New South Wales (2002) 211 CLR 317, applied
The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103, followed
Vairy v Wyong Shire Council (2005) 223 CLR 422, applied
Wyong Shire Council v Shirt (1980) 146 CLR 40, applied

Wolters v The University of the Sunshine Coast [2014] 1 QdR 571, applied

COUNSEL:

J A Greggery for the plaintiff

M T O’Sullivan for the defendant

SOLICITORS:

Connolly Suthers Lawyers (until 22 January 2017) and Organic Legal (from 23 January 2017) for the plaintiff

McInnes Wilson Lawyers for the defendant

INTRODUCTION

The plaintiff was the District Director of Nursing for the Cape York Health Service (“the Service”). She was subjected to repeated managerial mistreatment by the Service’s District Chief Executive Officer. This caused a psychiatric injury to the plaintiff with consequent loss of her career.
She claims for damages in negligence. Liability and quantum are both in issue.
PART A LIABILITY
The plaintiff’s case
The plaintiff’s second further amended statement of claim (“SOC”) is lengthy. Its basic structure in pleading a pathway to liability may be summarised as follows.
The plaintiff pleads in her SOC the defendant owed her a non-delegable duty to take reasonable care to avoid exposing her to a foreseeable risk of psychiatric injury in her employment.[1] She also pleads at paragraph 3(e) that the defendant was liable for the acts and omissions of Susan Turner, the District Chief Executive Officer (“CEO”).[2]
[1] SOC [3(d)].
[2] SOC [3(e)].
She pleads:
“6. Over a period of time from in or about March 2010 to 17 January 2011 the plaintiff was subjected to management action which harassed, mistreated, devalued and undermined the plaintiff in her employment as set forth below: …”
Listed thereunder are many subparagraphs alleging facts. Many of the facts pleaded in paragraph 6 focus upon concerning conduct towards Mrs Robinson by Ms Turner. The plaintiff pleads she suffered a psychiatric injury in the nature of a chronic adjustment disorder with anxiety and depressed mood, as a consequence of the matters pleaded in paragraph 6.[3] She pleads the defendant knew or ought to have known of the plaintiff’s vulnerability to a psychiatric injury as a consequence of many of the matters set forth in paragraph 6.
[3] SOC [7]. Some of the facts pleaded in paragraph 6 are merely innocuous background facts and are not in themselves instances of harassment, mistreatment, devaluation or undermining. On a literal view that imprecision infects paragraph 7 of the SOC, which pleads the plaintiff suffered her psychiatric injury as “a consequence of the matters set forth in paragraph 6”. It is obvious the innocuous background facts included within paragraph 6 could not in themselves have had such a causal effect. However, it is self-evident from the nature of the many facts listed in paragraph 6 which of them were actually instances of alleged harassment, mistreatment, devaluation or undermining – inferentially the “matters” to which paragraph 7 refers – and which of them merely provide background information.
As to breach of duty, the plaintiff pleads at paragraph 10 of the SOC that her injury was caused by the negligence of the defendant in the form of 14 various failures of the defendant.
Many of those alleged failures in effect involve a failure to properly manage so as to prevent Ms Turner from behaving as she allegedly did. It is therefore unsurprising the plaintiff pleads an alternative basis of liability at paragraph 11 of the SOC, namely:
“Alternative liability of Defendant
11. Alternatively, the Defendant is liable for the conduct of Turner set forth in paragraph 10 herein.”
The meaning attributed to paragraphs 10 and 11 by the plaintiff,[4] without suggestion of surprise by the defendant at trial, is that by paragraph 10 the defendant is alleged to be directly liable for the various failures attributed to it, principally in connection with Ms Turner’s conduct, and by paragraph 11 is alleged to be vicariously liable for Ms Turner’s conduct pleaded in paragraph 10.
[4] See for example Plaintiff’s Outline of Submissions p 15.
Legal principles – duty and breach
The attribution of direct liability to the defendant for its failures alleged in paragraph 10 necessarily involves an inference that the defendant, an abstract corporate entity, knew or acting reasonably ought to have known of the need to do that which it failed to do. Where those failures involved conduct by Ms Turner in carrying out her role as CEO the implication of corporate knowledge flows compellingly from the fact she was at the managerial apex of the Service. Her knowledge ought be inferred to be the defendant’s knowledge. As much follows by parity of reasoning from the reasons, explained by Beasley JA in Nationwide News Pty Ltd v Naidu,[5] for the potential attribution of corporate liability, not merely knowledge, to directors or managers representing the directing will of a corporate entity.
[5] Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, 504-505.
The attribution of vicarious liability to a corporate entity for the wrongful conduct of its employee, requires that there be a sufficiently close connection between that conduct and the type of conduct the employee was engaged to perform, to conclude it was conduct carried out in the course of that employment.[6] The greater the authority in which an employer clothes an employee, the greater the risk of harm flowing from conduct abusing that authority and the easier it is to infer the conduct was done in the course of employment.[7] The authority entrusted to Ms Turner as CEO and the fact that all of her conduct alleged in paragraph 10 was purportedly carried out in her performance of that role compels the inference the defendant was vicariously responsible for it. While the nature of the alleged conduct was not conceded, it was not seriously suggested it was conduct beyond the course of Ms Turner’s employment and thus conduct the defendant would not be liable for.
[6] Per Williams JA in Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486, 490 explaining New South Wales v Lepore (2003) 212 CLR 511.
[7] Ibid.
Turning to duty of care, it is well settled the employer’s duty of care includes an obligation to take all reasonable steps to provide a safe system of work.[8] More relevantly to the present case it also includes a duty to take reasonable care to avoid psychiatric injury.[9]
[8] Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, 53.
[9] Ibid.
Where it is alleged a breach of the employer’s duty of care has caused psychiatric injury a pre-condition to liability is whether “in all the circumstances, the risk of a plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful.”[10]
[10] Ibid, 57; Tame v New South Wales (2002) 211 CLR 317.
That a person of “normal fortitude” might have suffered the psychiatric injury is not a separate pre-condition to liability.[11] As the High Court explained in Koehler v Cerebos (Aust) Ltd,[12] the focus is not upon the hypothetical person of normal fortitude but rather upon the particular employee in the case under consideration and “invites attention to the nature and extent of the work being done by the particular employee and signs given by the employee concerned.”[13]
[11] Tame v New South Wales (2002) 211 CLR 317.
[12] (2005) 222 CLR 44.
[13] Ibid, 57.
In this case the significant demands of Mrs Robinson’s position was not as determinatively significant as the signs she gave. That she held an inherently demanding position, effectively overseeing the activities of a majority of the Service’s workforce, was still relevant. However, it was not per se a position suggesting of itself a heightened risk of psychiatric injury.
It is not enough to demonstrate only that a psychiatric injury was reasonably foreseeable and that a defendant’s negligence was the cause thereof. The magnitude of the risk and its degree of probability must also be considered.[14] As was explained by Spigelman CJ in Nationwide News Pty Ltd v Naidu:[15]
“[I]t is now well established that workplace stress, and specifically bullying, can lead to recognised psychiatric injury. That does not, however, lead to the conclusion that the risk of such injury always requires a response for the purpose of attributing legal responsibility. Predictability is not enough. …
An employer can be liable for negligence because of a failure to protect an employee against bullying and harassment. However, the existence of such conduct does not determine the issue of breach of duty. …
One of the elements required to be assessed is the degree of probability that the risk of psychiatric injury may occur, even when the reasonable foreseeability test of a risk that is not far fetched and fanciful, has been satisfied.”
[14] Wyong Shire Council v Shirt (1980) 146 CLR 40, 46.
[15] (2007) 71 NSWLR 471, 478.
The need to consider the degree of probability of risk of psychiatric injury is enshrined in s 305B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”) which provides:
“(1) A person does not breach a duty to take precautions against a risk of injury to a worker unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and
(b)     the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the position of the person would have taken the precautions.
(2)     In deciding whether a reasonable person would have taken precautions against a risk of injury, the court is to consider the following (among other relevant things)—
(a)      the probability that the injury would occur if care were not taken;
(b)     the likely seriousness of the injury;
(c)      the burden of taking precautions to avoid the risk of injury.”
Whether a reasonable person in the position of the defendant would have taken precautions requires consideration of what a reasonable person would have done in response to the risk.[16] The inquiry is a prospective one.[17] Because degrees of psychological stress and tension are inevitable in any organisation the focus must be upon whether the particular circumstances of the case should be seen on a test of reasonableness as having required intervention.[18] Hence the High Court’s emphasis in Koehler v Cerebos (Aust) Ltd upon the need to consider the nature and extent of the work being done by the employee and signs given by the employee.
[16]    Wyong Shire Council v Shirt (1980) 146 CLR 40, 47.
[17]    Vairy v Wyong Shire Council (2005) 223 CLR 422.
[18]    Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, 477.
To those two considerations I add two others of relevance to a case involving an accumulation of episodes of potential breach. Firstly, it is logically necessary to consider the foreseeability of the risk of psychiatric injury by reference to the foreseeable cumulative effect of those episodes. The nature of a single episode may not of itself bespeak a probability of psychiatric injury but the increasingly draining impact of an accumulation of such episodes might.
Secondly, if the repeated episodes of potential breaches are attributable to a principal perpetrator it is appropriate to consider the perpetrator’s position of power in the workplace relative to that of the psychiatrically injured employee. As a general and by no means determinative proposition, repeated potential breaches by a junior employee would not ordinarily be recognised as being as likely to cause psychiatric injury as repeated potential breaches by an employee in a position of managerial power over the injured employee. In the case of the former, there may of course be other elements present in a particular case, including signs given by the injured employee, rendering psychiatric injury foreseeable. In the case of the latter however, the intrinsic power differential is of itself an element tending to increase the probability and thus foreseeability of psychiatric injury. Take for example the case of an employee subjected to a course of managerial mistreatment, humiliation, undermining and isolation by the employee’s CEO. The fact that someone with such a powerful influence over the employee’s fate in the workplace is so targeting the employee will obviously tend to have such a crushing impact upon the employee as to heighten the inherent risk of psychiatric injury. Sadly, this case involves such conduct by a CEO.
Factual analysis
The number of episodes and failures alleged in the SOC is significant because the case involves a course of events during about a year in the workplace, commencing with Ms Turner’s commencement as CEO in early 2010. The ensuing factual analysis is thus unavoidably lengthy despite the omission of reference to events of minor significance explored by the parties in evidence. Some review of earlier events is necessary to place events during Ms Turner’s tenure in context.
Background
The plaintiff, Mrs Robinson, recently turned 59, having been born on 21 July 1958. She worked as a registered nurse at various locations in north Queensland. She progressed to the positions of Assistant Director of Nursing, Director of Nursing (“DON”) and District DON. She transferred at level to become Cape York Health Service (“the Service”) District DON based at Weipa in January 2008.[19]
[19] T1-29, Ex 1 p 34.
Mrs Robinson’s husband, who worked as a maintenance supervisor with Queensland Health, moved to Weipa in March 2008.[20]
[20] T1-32.
Mrs Robinson was a member of the district’s executive team and accountable to the District Chief Executive Officer (“CEO”). Mrs Robinson was in turn responsible for the DONs based at various Cape York towns and communities.
She was an apparently competent, well regarded District DON, without any history of psychological or psychiatric problems.
The Holford/Holmes tensions
The DON at Weipa Hospital was Sharon Holford.[21] One staff member supervised by Ms Holford was Weipa’s Nurse Unit Manager (“NUM”), Barbara Holmes. In the first year of Mrs Robinson’s tenure as Cape York District DON, Ms Holford would seek her advice but not her intervention in managing Ms Holmes.[22] Ms Holford would also arrange for other Weipa nursing staff to talk to Mrs Robinson when they were disgruntled with Ms Holmes’ treatment of them,[23] often in the context of rostering.[24]
[21]    T1-34, Ex 2 p 49.
[22]    T1-34 L37.
[23]    T1-34 L44.
[24]    T1-36 L35.
By January 2009 Ms Holford told Mrs Robinson she had had enough of Barbara Holmes and wanted Mrs Robinson to intervene.[25] Around this time Ms Holmes complained to Mrs Robinson about Ms Holford.[26] Her complaints were similar to Ms Holford’s and Mrs Robinson suspected there was a need for clearer role delineation.[27] The apparently dysfunctional working relationship between Ms Holmes and Ms Holford manifested itself in a lack of planning for a move from the old Weipa Hospital to the new Weipa Hospital[28] and in a lack of adherence to mandatory training requirements for the nursing workforce at Weipa.[29]
[25]    T1-35 L36. To what extent Mrs Robinson should have intervened or did intervene earlier were not issues for consideration in the present proceeding.
[26]    T1-35 L42.
[27]    T1-37 L10.
[28]    T1-35 L17, T2-79 L20.
[29]    T2-79 LL3-16.
Mrs Robinson consulted her then CEO, Paul Stephenson, suggesting there was a need for mediation between Ms Holford and Ms Holmes.[30] Mr Stephenson arranged for Ms Erin Davis of the Cairns District Human Resources section to investigate arrangements for potential mediation.[31] However, after preliminary interviews, Ms Davis concluded mediation was inappropriate because of the deep-seated issues Ms Holford and Ms Holmes had with each other.[32]
[30]    T1-37 L20.
[31]    T1-37 L43.
[32]    T1-38 L2.
The PsyCare Report
Mr Stephenson sought advice and as a consequence an external agency, PsyCare Corporate (“PsyCare”) was engaged. Dr Lees, a clinical psychologist with PsyCare, conducted a mediation with Ms Holford and Ms Holmes in March 2009.[33] Then in June 2009 PsyCare was appointed to conduct an organisational health review of the Weipa Integrated Health Service.[34]
[33] Ex 1 p 41.
[34] Ex 1 p 40.
PsyCare wrote two reports styled “Final report – stage 1”, dated 12 August 2009 and 7 September 2009.[35] The report of 12 August 2009 was directed to Mrs Robinson with a cc copy to Mr Stephenson. The report of 7 September 2009 was directed to Mr Stephenson. I infer it was this latter report which was the formal report (“the PsyCare report”). The reports were largely identical, each noting, inter alia:
“There has been a longstanding history of interpersonal difficulties between the Nurse Unit Manager (NUM) and the Director of Nursing (DON), as well as between the NUM, DON and several staff, in context to performance and leadership concerns across the Department by both the NUM and DON. Despite multiple attempts by management to resolve issues, as well as implement training, support programs, and development plans for both the NUM and DON, little improvement in performance and interpersonal relationships has reportedly been noted.[36] … “
[35] Ex 1 p 40 et sequitur.
[36] Ex 1 p 41 and p 54.
Both reports were critical of Ms Holmes, saying for example:
“[S]taff raised significant concern regarding the NUM’s management support and behaviour, suggesting that at times the NUM did not engage in effective communication practices and was described as being unpredictable and inconsistent in her management approach, attitude, and behaviour towards staff and senior management. …
During the course of the Organisational Health Review, PsyCare Consultants observed episodes of like behaviour by the NUM, including emotional outbursts in front of staff, expressions of distress, disengagement in team meetings and frequent periods of emotional lability.”[37]
[37] Ex 1 pp 42-43, pp 55-56.

Some similarly critical observations about Ms Holford, appeared in the report of 12 August, but not the report of 7 September.[38]
[38] Ex 1 p 43.
The opinions and recommendations expressed in both reports included:
“4.     Results of the initial organisational health review highlighted significant concerns from staff and management regarding the longstanding history of relationship and interpersonal difficulties between the NUM and the DON, which have negatively impacted on staff, morale and culture. Despite multiple attempts at improving this relationship through facilitated discussions and formal mediation over several years, there has been limited improvement in working relationships. As such, from a workplace health and safety psychosocial risk perspective, the results of the organisational health review suggest that the working relationship between the NUM and DON no longer appears viable. …
5.1     The results of the organisational health review demonstrates significant psychosocial risks to the Weipa Integrated Health Service, particularly among the nursing staff.”[39]
7 September 2009 PsyCare report recommends Holmes be removed[40]
[39]    Ex 1 p 48, p 61.
[40]    SOC [6(a)]. This and ensuing italic sub-headings are, for the parties’ ease of reference, footnoted with the SOC [6] pleading sub-paragraph to which they appear to relate.
Both reports recommended Ms Holmes be removed:
“5.2   Recommendation: …
[T]hat the NUM be placed on leave and immediately referred for a ‘fitness for duty’ psychiatric medical assessment to ascertain her fitness and capability to undertake the NUM role within the Weipa Integrated Health Service. …
5.3     Recommendation: …
[T]he behaviour of the current NUM presents a “significant risk” to the ongoing wellbeing of the unit. As such, it is recommended that immediate action is taken to separate the NUM from the workgroup and that formal performance management and disciplinary processes be instigated regarding possible breaches of the code of conduct. Should the employment contract not be terminated, it is recommended that any subsequent remedial assessment of leadership capabilities and follow-up training and support be conducted at another location away from the present workgroup.”[41] (emphasis added)
[41]    Ex 1 pp 48, 49, 61, 62.
Some not dissimilar recommendations about Ms Holford were made in the report of 12 August 2009 but were not included in the report of 7 September 2009.[42]
[42] Ex 1 p 50.
By the time of the issue of the PsyCare report Ms Holford was on stress leave in connection with events when she was DON at Kowanyama and the failure of a morgue fridge caused distress to family members of a deceased child. Mrs Robinson recalls she and Mr Stephenson were concerned by the prospect of the report content adding to Ms Holford’s stress[43] but it is unclear whether that is why the adverse references to Ms Holford in the report of 12 August 2009 were not included in the otherwise identical report of 7 September 2009.
@ September 2009 Holmes’ response to the PsyCare report targets Robinson[44]
[43] T1-41 L20.
[44] SOC [6(b)].
Mrs Robinson was present at Mr Stephenson’s request when he gave Ms Holmes a copy of what Mrs Robinson understood was the PsyCare report and a letter giving Ms Holmes the opportunity to respond to it.[45] Mrs Robinson was at this time, in Ms Holford’s absence, performing both her role and Ms Holford’s.[46] After the meeting Ms Holmes commented to Mrs Robinson that she should not have gone to Mrs Robinson and Mrs Robinson had caused her to be in the position of now having to prove her ability.[47]
[45]    T1-41 LL30, 34.
[46]    T1-41 L45.
[47]    T1-42 LL1-10.
Mr Stephenson later informed Mrs Robinson that Ms Holmes’ response to the PsyCare report had named Mrs Robinson as the cause of a number of things, the detail of which Mrs Robinson cannot recall.[48] Mrs Robinson was “a bit” worried about that and mentioned her concern to Mr Stephenson and to Nicky Perriman, the Service’s Human Resources Manager, whose position was later described as Director of People and Culture.[49]
[48] T1-42 L29.
[49] T1-44 LL35-47.
After discussions between Mr Stephenson and Mrs Robinson and assistance from the Human Resources section the decision was taken to move Ms Holmes because of the risks to staff identified in the PsyCare report.[50] She was assigned to a different work unit called “patient safety and quality”, working on an accreditation process.[51]
December 2009-10 January 2010 Robinson acts as CEO[52]
[50]    T1-44 LL1-6.
[51]    T1-44 LL20-33.
[52]    SOC [6(c)].
Mr Stephenson left his role as CEO in about October of 2009. Pending the appointment of his eventual replacement, Susan Turner, three other staff acted in his position: Raelene Burke, executive director of Human Resources for the department’s northern health services, followed by Karen Jacobs, the director of Primary Health Care and, after Christmas, Mrs Robinson.[53]
[53] T1-45 L30.
10 January 2010 Turner arrives and is told Robinson is vulnerable[54]
[54] SOC [6(d)].
Susan Turner commenced in the position of CEO on about 10 January 2010.[55] Mrs Robinson handed over the role, in which she had been acting, to Ms Turner in the CEO’s office in the presence of Ms Jacobs.[56]
[55] T1-45 L22.
[56] T1-46 LL34-48.
The hand-over meeting included an explanation of what had been occurring at Weipa Hospital including in respect of Ms Holford and Ms Holmes.[57] Mrs Robinson testified of this conversation:
“I told her how complex it was and that I was also vulnerable because of the behaviours of those people, and I gave her some documents supporting all that…I told her I was vulnerable because of what in the end had felt like this personal attack from Barbara, as opposed to what I originally saw it as just somebody responding.”[58]
[57] T6-32 L26.
[58] T1-46 LL10, 35.
In cross-examination Mrs Robinson accepted when it was put, that the effect of what she was saying to Ms Turner was she was emotionally or mentally fragile.[59] However she resisted the suggestion she felt “very” vulnerable or fragile.[60] The point of the cross-examination was to highlight Ms Holmes as a pre-existing stressor on Mrs Robinson, an aspect ultimately relevant to the issue of causation of her later psychiatric injury.
[59] T3-18 L44.
[60] T3-19 L7.
Mrs Robinson provided Ms Turner with a copy of the PsyCare report and the associated letter to Ms Holmes and Ms Holmes’ response.[61] Ms Turner testified she read the copy of the PsyCare report she was given at the meeting soon afterwards, within a few days.[62]
[61] T1-46 L15.
[62] T5-40 L44 – T5-41L4.
Mrs Robinson, while not purporting to recall the words used, testified of Ms Turner’s response to Mrs Robinson’s concerns about vulnerability as follows:
“She told me that I had no cause for any concern and that she would make sure that nothing untoward happened and that … I was safe from anything from Barbara Holmes and … She certainly … told me I was fine and that … Barbara didn’t really have any grounds to stand on and that she would keep me safe.”[63]
[63] T1-46 L40.
According to Ms Turner there was no discussion “to any great extent” at the meeting about troublemakers. She testified:
“I recalled her talking about Holmes and Holford as being difficult and – you know, with their hand over around the PsyCare review and background information around that, that they were difficult staff members, that – things like that, but nothing unusual that I would consider that to be anyway.”[64]
[64] T4-43 L5.
On the other hand this exchange occurred during Ms Turner’s cross-examination:
“And Ms Robinson, you might recall, raised with you her concerns about Barbara Holmes and the background and the need to keep a close eye on her because she felt vulnerable ---?--- Well---
---for what might happen with Barbara Holmes?--- Yeah, something to that effect, that she was a highly manipulative individual and difficult…”[65] (emphasis added)
[65] T5-42 LL15-22. (The word “eye” in the above quote did not appear in the transcript but was heard by me and is audible in the recording.)
Ms Turner did not agree Mrs Robinson had indicated at the hand-over meeting that as a result of the situation with Ms Holmes she was feeling vulnerable and fragile.[66] On Ms Turner’s account Mrs Robinson only started raising concerns of that kind, including a concern that Holmes and Holford were going to try and get rid of her, once there was a need to enter into return to work programs in respect of Holmes and Holford.[67]
[66] T4-45 L23.
[67] T4-45 L17.
I accept Mrs Robinson’s evidence about what was said during the hand-over process. It appeared Ms Turner deliberately played down the extent to which she was put on notice of Mrs Robinson’s concerns about Ms Holmes. Of course, what was said by Robinson was of itself well short of identifying herself as at risk of psychiatric injury. Nonetheless her expression of concern assumes relevance as part of Ms Turner’s progressive accumulation of knowledge about Mrs Robinson’s mental state. So too does her knowledge that the staff member about whom Mrs Robinson was concerned had been identified in the PsyCare report as an especially troubling staff member.
Turner’s inaction on the PsyCare report
A significant aspect about the timing of Ms Turner’s arrival is that the PsyCare Report was then still a recent and important document, particularly in respect of the future management of Ms Holmes. Beyond separating her from the workgroup it had also been recommended, inter alia, that formal performance management and disciplinary processes be instigated regarding possible breaches of the code of conduct and that Ms Holmes be referred for a fitness for duty psychiatric medical assessment. Save for Ms Holmes having been designated to work in the patient safety and quality unit, the recommendations had not been implemented between the report and Ms Turner’s arrival, Ms Holmes having been off work with a shoulder injury.[68]
[68] T5-43 L3.
Ms Turner does not appear to have given any weight to the PsyCare report’s recommendations after her arrival. She did not take steps to ensure that disciplinary processes were instigated.[69] On her recollection there was no psychiatric medical assessment either.[70] It is extraordinary that the defendant considered it appropriate to have engaged an external agency to review the difficulty in the workplace presented, inter alia, by Ms Holmes and, having learnt from that review that Ms Holmes’ behaviours presented a risk to the wellbeing of her work unit, apparently ignored the advice of that review to have Ms Holmes psychiatrically assessed and to instigate disciplinary processes for her possible breaches of the code of conduct.
[69] T7-38 L41.
[70] T5-43 L47.
In cross-examination Ms Turner defended her apparent inaction on the report’s recommendations by asserting a different course of action to that recommended had been determined and put in a letter to Ms Holmes by the Human Resources Executive Director, Ms Burke, before Ms Turner had arrived.[71] The letter she spoke of was not produced.[72] She asserted she was advised she “was committed to the letter” and she considered her “hands were tied” to the undertakings given in that letter.[73]
[71]    T5-43 LL16-25, T5-48 L15.
[72]    T5-82 L1.
[73]    T5-44 L7, T5-48 L33.
This evidence was not credible. Ms Turner may not have had initial involvement in the development plan developed for Ms Holmes. However, an email from Michelle Gaffney, acting Director of People and Culture, to Ms Turner on 25 June 2010, noted Ms Turner was to make the final determination under the development plan and sought a meeting with Ms Turner to “clarify the specifics of the plan” and how Ms Turner “would like to proceed”.[74] The weight to be given to the PsyCare report in how Ms Holmes was to be managed was clearly a consideration within the discretion of Ms Turner’s decision-making power.
[74] Ex 21.
Patient safety and quality unit to report to Robinson
Ms Holmes had been off work because of a shoulder injury at the time that Ms Turner started.[75] It will be recalled that after the PsyCare report she had been assigned to the patient safety and quality unit. That unit used to report directly to the CEO.
[75] T1-49 L15.
Ms Turner varied that arrangement, so that instead the patient safety and quality unit reported to the District DON, Mrs Robinson.[76] This arrangement had the potential for Ms Holmes, who was still on leave, to have to report to Mrs Robinson as the line manager of that unit. However, Ms Turner decided and told Mrs Robinson that Ms Holmes would be required to report to Ms Turner.[77] The new arrangement required Mrs Robinson to work with Michelle Costello, the administrative staff member of the patient safety and quality unit on an accreditation and auditing process, a process Mrs Robinson had not been involved with prior to Ms Turner’s arrival.[78]
[76]    T1-50 L30.
[77]    T1-50 L45, T5-47 L47.
[78]    T1-51 LL5-47.
@ 28 February 2010 Turner delegates credentialing process to Robinson[79]
[79]    SOC [6(e)].
When Ms Turner placed the patient safety and quality unit under Mrs Robinson’s responsibility she also asked Mrs Robinson to undertake the overseeing of clinical credentialing for medical officers.[80] Ms Turner testified Mrs Robinson “offered to take over that function”.[81]   Mrs Robinson conceded she might have offered, but in the context of Ms Turner being overloaded and mentioning she was ignorant of the process.[82] This additional role required Mrs Robinson to attend credentialing and scope of clinical practice committee meetings, something she had not been involved with prior to Ms Turner’s arrival.[83] Mrs Robinson inherited that additional responsibility on about 28 February 2010.[84]
[80]    T1-51 L18.
[81]    T4-45 L29.
[82]    T3-22 L2.
[83]    T1-51 L21.
[84]    Ex 1 p 65, T1-51 L24.
Ms Turner acknowledged in evidence that Mrs Robinson did not then or ever complain about her workload and the long hours it involved.[85] Ms Turner also acknowledged when she started at Weipa it appeared to her that Mrs Robinson appeared very capable, hard-working and untroubled by any health concerns.[86]
[85]    T5-28 L41, T5-29 L13.
[86]    T5-28 LL28-39.
23 March 2010 Holmes to return and Robinson not her line manager[87]
[87]    SOC [6(h)].
When the time came for Ms Holmes to return to work after recovering from her shoulder injury the Human Resources Executive Director, Raelene Burke, oversaw the implementation of a three month return to work plan, apparently structured to accomodate Ms Holmes’ wish that she not have to report to Mrs Robinson in the wake of the PsyCare report.[88]
[88] T2-83 L6.
On or by 23 March 2010 Mrs Robinson had become aware Ms Holmes’ return to work was imminent and that Raelene Burke would be involved in that process.[89] Mrs Robinson went to Ms Burke to discuss Ms Holmes’ return and expressed her preference against being involved and learned from Ms Burke that it was also Ms Holmes’ preference.
[89] Ex 1 p 87.
On 23 March 2010 Mrs Robinson emailed the particulars of a meeting for 26 March 2010 with the attendees to be Mrs Robinson, Ms Holmes and Raelene Burke.[90] Mrs Robinson said in the email to Ms Holmes:
“Raelene Burke will be coming to Weipa this week.
Would you be available to meet with Raelene and I on Friday at 11.30 am to discuss the way forward in regards to the Organisational Health Review Report?
Please feel free to bring a support person if you wish.
[90] Ex 1 p 87.
Could you let me know if this suits.”
The email’s reference to the Organisational Health Review Report was a reference to the PsyCare report.
At the outset of the planned meeting between Ms Holmes, Ms Burke and Mrs Robinson on 26 March 2010 Mrs Robinson explained she would not be involved in the process and left the meeting, handing it over to Ms Burke.[91] On Mrs Robinson’s account she thought this was a sensible arrangement with which she was happy because, as she testified:
“I was very threatened by having any dealings with Barbara Holmes at that stage because of the past history. … Or … what could develop probably more than anything. But it was a two way street. Barbara and myself were at risk and … we as the organisation needed to minimise that for both of us.”[92]
[91] T1-56 L43.
[92] T1-57 LL5-10.
Ms Burke testified the arrangement, which she described as “alternative dotted line reporting”, was calculated at making the process of Ms Holmes’ return to work easier for both her and Mrs Robinson.[93] Ms Burke testified that, while Ms Holmes was keen to return to her substantive position, that was deemed to be inappropriate while the issues arising from the PsyCare report remained to be dealt with.[94] Ms Burke transferred to Mackay in May 2010[95] and was thus not in a position to testify to how those issues were progressed, if at all, through the balance of 2010.
[93]    T2-84 L12.
[94]    T2-85 L16.
[95]    T2-76 L10.
23 March 2010 Holmes submits WIFs[96]
[96]    SOC [6(g)].
Unbeknown to Mrs Robinson, earlier in the week of Ms Holmes’ planned meeting with Mrs Robinson and Ms Burke, probably on Tuesday 23 March,[97] Ms Holmes submitted eight workplace incident forms (“WIFs”) making allegations of past bullying and harassment of Ms Holmes by Mrs Robinson.[98] Mrs Robinson was not to learn of the WIFs’ existence until 14 May 2010 or to see them until 7 July 2010, three and half months after they were submitted.
[97] T5-37 L33.
[98] Ex 1 pp 71-86, Ex 14, Ex 16.
A WIF is a two sided form, divided into sections containing various labelled boxes for relevant information to be inserted or to be crossed if applicable. It is obvious from its pro forma content that the form is designed to document incidents jeopardising health and safety in the workplace and to document the managerial review of and action taken in respect of such incidents. Ms Perriman explained WIFs were for the purpose of staff reporting a safety risk or hazard in the workplace and, while they could be used to report a conflict that was not their usual use.[99] Nonetheless, the form’s pro forma entries under the heading “Injury/Illness” include “Mental illness/stress” and under the heading “What happened” include “Harassment/bullying”. Ms Turner initially implied an allegation of harassment or bullying in a WIF would not trigger the taking of potentially adverse action against the target of the allegation, saying the allegation would have to be in a grievance to prompt such action.[100] However she soon acknowledged it would be reasonable management action to investigate such an allegation in a WIF, with the potential for escalation into a disciplinary process.[101]
[99] T7-6 L15.
[100] T4-64 L44.
[101] T4-65 L12.
Ms Perriman testified that WIFs were administered under the occupational health and safety system and would be sent to Helen Reed, the Occupational Health and Safety Manager.[102] Ms Reed explained if a WIF alleged bullying or harassment, advice may be sought from the HR branch as to whether there should be an investigation, because it involves more of a human resource than occupational health and safety issue.[103] However Ms Reed did not commence in her role until June 2010,[104] well after the submitting of the WIFs. Michelle Gaffney, Acting Human Resources Officer, had in the meantime seen the WIFs.[105] Ms Reed was told by Ms Holmes of the existence of her WIFs and tended to the proper processing of them[106] after being advised by Corporate Office in Brisbane that they should be processed regardless of the delay.[107] On Ms Reed’s rather imprecise account of this phase, she consulted Ms Perriman and thereafter discussed with Ms Turner whether the WIFs should be investigated.[108] She testified she thought the WIFs were not serious[109] and raised such trivial incidents it was unnecessary to investigate them.[110]
[102] T7-19 L23.
[103] T7-81 LL25-31.
[104] T7-57 L10.
[105] T1-57 LL13-27.
[106] T7-57 LL26-45.
[107] T7-58 L18.
[108] T7-58 LL29, 39.
[109] T7 -102 L36.
[110] T7-59 L24.

According to Ms Turner she did not become aware of the WIFs until Ms Reed informed her of them and that they needed to be addressed.[111] However she well knew they were coming. Ms Holmes had emailed Ms Turner on 15 March complaining of injustices done to her, requesting that she be returned to her substantive position as soon as possible and announcing she had decided to submit the WIFs.[112] On 23 March 2010 Ms Turner acknowledged receipt of Ms Holmes’ email and Ms Holmes promptly sent Ms Turner another email thanking her.[113]
[111] T4-47 L10.
[112] Ex 19.
[113] Ex 20.
On Ms Turner’s account she signed the WIFs on the date that Ms Reed raised them with her.[114] On her account she initially refused to sign them but was told she had to sign them and write a comment.[115] She claimed she was reluctant to sign them because she felt they were “just ridiculous” and “vexatious”.[116] According to Ms Turner:
“I was actually really dismayed at seeing all of these incident forms. I felt that they were actually quite vindictive and vicious … and vexatious. As a chief executive and my right as Mary-Rose’s manager, my preference was to take no further action because I felt that there was nothing of cause for concern here because I felt that they were going back a number of years and it just seemed quite vexatious to me.”[117]
[114] T4-49 L15.
[115] T4-51 L6.
[116] T4-51 L9.
[117] T4-50 LL41-48.
Ms Turner acknowledged in cross-examination she appreciated Mrs Robinson would find the Holmes WIFs particularly distressing because in a malicious and retributive way Ms Holmes had stored up a bunch of vexatious complaints about the most senior nurse in the district, lumping them together before Ms Turner as the new CEO.[118] She acknowledged Mrs Robinson, the most senior nurse in the district, headed 80 per cent of the district’s workforce[119] and claimed she took quite seriously the fact that a member of the executive with such breadth of responsibility was being maliciously targeted by a NUM from a local hospital.[120]
[118] T5-34 LL25-47.
[119] T5-35 L6.
[120] T5-35 L39.
On Ms Turner’s account, having been told by Helen Reed that she had to endorse the forms, she would have written something to the effect that they were vexatious and no further action was to be taken upon the forms.[121] This was patently untrue. She wrote nothing to that effect. To the contrary, she endorsed each of the eight forms with the words, “Referred for independent investigation”, dating her signature 10 April 2010.
[121] T4-51 L4.
When the nature of the endorsement by Ms Turner on the rear of the WIFs was drawn to her attention later in evidence-in-chief, her evidence appeared to evolve:
“[W]hat’s the comment that was written there by you?--- Referred for independent investigation.
And is that ESU, or---?--- For an independent review of something for this – I actually was – if I can describe a situation, I actually was so upset – I was concerned about these WIFs. I felt, as I said, they were vexatious. I actually didn’t want to sign them; I got told I had to sign them.
[122] T4-75 LL15-25.
Yeah?--- I was advised to [indistinct] the types of things that I had in there for further review of investigation but I don’t believe that anything else was done other than this.”[122]
Such evidence fails to explain the obvious point that Ms Turner’s endorsement, had she so chosen and as she earlier falsely suggested in evidence she had written, could simply have been to the effect that the WIFs were vexatious and no further action was to be taken upon them.
As to Ms Turner’s dating of her endorsement as 10 April 2010, in a statutory declaration by her, given in the context of the WorkCover dispute which followed Mrs Robinson’s ultimate departure from the workplace, Ms Turner stated:
“The WIFs are not date stamped on the reverse side of each form. I have caused further enquiry to be made about the receipt and management of the WIFs. It appears from an email from Sarah Arndt (Coordinator HR Support) to Raelene Burke (Director People and Culture: Office of Rural and Remote Health) that the WIFs were received by Ms Burke on 23 March 2010 at a time when I was out of the district. Based on the date I placed on the WIFs it is my belief that I first saw them on or about 10 April 2010.”[123]
[123] T5-37 LL28-35.
Inconsistently with that declaration Ms Turner testified at trial that she did not receive the WIFs until July but had been advised to write the date as being the date around which the WIFs were first provided.[124] I did not believe Ms Turner’s evidence that she did not receive the WIFs until July. As will become apparent from the below discussed facts, Ms Turner must have seen the WIFs by no later than mid-May 2010.
[124] T4-75 L30.
Given Ms Turner’s status as CEO it is reasonable to infer there would have been an independent investigation of the WIFs had Ms Turner passed them on bearing her endorsement, “Referred for independent investigation”. In fact there was no investigation – an anomaly Ms Turner was unable to sensibly explain in cross-examination.[125] Ms Reed acknowledged of the absence of investigation that at best some of the matters raised by the WIFs were within the incidental range of investigation of other reviews which occurred much later in the year.[126] Plainly they were not the “investigation” purportedly referenced by Ms Turner’s endorsement. The probability is that Ms Turner did not actually endorse the Holmes WIFs at all, or at least not pass them on bearing her endorsement, until she began to suspect the adequacy of her management in connection with them might come under scrutiny.
[125] T5-56 L10.
[126] T7-82 LL26-39.
Still later in evidence-in-chief Ms Turner claimed, unbelievably, that she received the Holmes WIFs in June 2010, explaining the gap may have been because Helen Reed’s job as Occupational Health and Safety Manager had been advertised and no-one was filling the role.[127] She claimed that after her receipt of the WIFs she had been advised by Nicky Perriman and Helen Reed that, despite the fact the WIFs were potentially vexatious, the nature of the complaints in them meant Ms Turner “needed to escalate this up and have it considered by ESU” (the Ethical Standards Unit).[128] Ms Turner claimed that whilst she had been trained in respect of the department’s various codes of conduct, she relied on the advice of Nicky Perriman and Helen Reed, they being “a lot more experienced” in such matters.[129]
[127] T5-5 L15.
[128] T5-4 L42 – T5-5 L5.
[129] T5-6 LL2-19.
Ms Perriman’s testimony does not support Ms Turner’s claim that Ms Perriman urged any such escalation. To the contrary Ms Perriman favoured resolving the WIFs by arranging for mediation between Ms Robinson and Ms Holmes.[130]
[130] T7-9 L40.
23-29 March 2010 Robinson concerned re executive and team building workshop[131]
[131] SOC [6(f)].
On Mrs Robinson’s account Ms Turner expressed the view that the executive was not functioning as a team and that work needed to be done to improve it.[132] On Mrs Robinson’s account there was some friction between team members being critical of others in emails and “marking territory and trying to impress the boss”.[133] Mrs Robinson expressed concern to Ms Turner because of the way the executive had started to attack each other, saying she was concerned and felt vulnerable because of it.[134] According to Ms Turner, a few days after the hand-over meeting Mrs Robinson told her she needed to watch her back in respect of some members of the executive who would be happy to stab her in the back.[135] Ms Turner testified she asked for detail about that but Mrs Robinson did not want to go into detail, to which Ms Turner allegedly said that, unless she could provide detail, Ms Turner did not want to be spoken to about the matter again.[136] Mrs Robinson testified, and I accept, she did not have a conversation to quite that effect with Ms Turner but explained she probably did talk to her on the theme of persons talking behind each other’s backs when later discussing team building with Ms Turner.[137] That she would have done so rests comfortably with Ms Turner’s testimony that it was apparent to her at an early stage that the executive was somewhat dysfunctional in its interpersonal relationships and communication.[138]
[132] T1-52 L12.
[133] T1-53 L34.
[134] T1-53 L14, T3-23 LL18-30. This may have been said in the context of discussing a forthcoming team building workshop – T3-23 L14.
[135] T4-44 L33.
[136] T4-44 LL31-40.
[137] T3-20 L16.
[138] T5-30 L44.
In a leave application dated 18 March 2010 Mrs Robinson applied for eight days’ leave in late April and early May.[139] She needed to attend what she regarded as an unavoidable family holiday event. Ms Turner ultimately signed the approval section of that leave form on 25 March 2010, but not before communications passed between Ms Turner and Mrs Robinson in the interim. For instance, Ms Turner wrote a note to Mrs Robinson upon the leave form, presumably at a time before ultimately approving the leave, indicating that the dates sought were during a team building exercise Ms Turner was planning and that unless there was an urgent reason for taking leave, she needed Mrs Robinson at the training.
[139] Ex 1 p 67.
On 23 March 2010 Ms Turner’s secretary Cherie Woodham discussed with Mrs Robinson dates when the team building workshop might be changed to, and the following day Mrs Robinson sought clarification from Ms Turner as to who was to attend the team building workshop.[140] The specific issue was whether it would be attendees only from the executive level or whether it included senior managers beneath, which, from Mrs Robinson’s perspective, would include the DONs. Mrs Robinson was advised it was confined to the executive team and only a couple of miscellaneous support staff.[141]
[140] Ex 1 p 68.
[141] T1-55 L5.
It appears the latter information was conveyed by Ms Turner to Mrs Robinson at a discussion between them on 24 March 2010, when Ms Turner explained to Mrs Robinson that the dates of the training could not be changed and that if Mrs Robinson was unable to attend she would be updated regarding any decisions or outcomes.[142] Mrs Robinson understood from her meeting with Ms Turner that the team building sessions would be about the direction of the district, so that if Ms Turner missed the meeting she could be updated. But because of some things she was told by another staff member she became concerned that more may have been involved.[143]
[142] Ex 1 p 70.
[143] T1-55 LL40, 45.
The following day, 25 March 2010, the same date Ms Turner approved Mrs Robinson’s leave application, Mrs Robinson emailed Ms Turner enquiring about the nature of the proposed team building exercises as follows:
“Are you able to tell me what it is actually about as I thought it was “Team Building” as in the “fuzzy stuff” to assist the team to work better. (Not that I’m saying that is not important)
However, if there are going to be discussions about management strategies, district structure, work practice changes, models of management, (just for examples) or any of those types of things it is very different and I feel I would be failing the district and DDON role by not being there.
I really owe it to my family to continue with the holiday but I feel it is unworkable for my role not to be present if it is more than the fuzzy type team building.
[144] Ex 1 p 70.
Could you advise so that I can try to reach the right decision.”[144]
Mrs Robinson was at this time contemplating, if the team building exercises did go further than “fuzzy stuff” and involved the implementation of management strategies, practice changes and the like, it may be necessary for her to step aside from her role to allow someone else to act in it during such a transition.[145]
[145] T1-56 L5.
On 29 March 2010 Mrs Robinson, understanding Ms Turner was not in her office, emailed her advising she had arrived at the conclusion she should allow someone else to step into the District DON role to be part of the executive to “implement the way forward as part of [Ms Turner’s executive] team” for four to six months after the workshop, on account of Mrs Robinson’s inability to attend the workshop.[146] She went on to advise of her belief that the executive was “very fragmented (and probably damaged) and unable to work together as one unit” and “in such poor shape that we need to have a forum that just has exec in it”.
[146] Ex 1 p 89.
Within a minute or so of Mrs Robinson sending the above email Ms Turner attended at her office, expressing concern about Mrs Robinson thinking she should hand over the reins to somebody else. She indicated she wanted Mrs Robinson to be at the team building workshop and they needed to make arrangements so that she could be there.[147]
[147] T2-53 L3.
On the same date Mrs Robinson emailed Ms Turner, expressing concerns about a Cape York business administration review report.[148] The review dealt with the allocation of administrative staff to various work areas including two members of the executive.[149] Mrs Robinson’s email expressed dissatisfaction that there had not been a sufficiently broad array of work areas considered in the review, undermining the credibility of the review and the executive team. She expressed the view the process had been a farce and conveyed the view of another executive member that the process was a façade. Mrs Robinson emphasised her criticism was “in no way reflected towards the incoming DCEO” and explained it was what had been presented to Ms Turner that was the concern.[150]
[148] Ex 1 p 88.
[149] T1-60, 61.
[150] Ex 1 p 88.
On 7 April 2010 Mrs Robinson cancelled the first four days of her recreation leave at the end of April.[151] She did so to try to accommodate the team building workshop.[152] In the end result the dates for the team building workshop were postponed.[153]
[151] Ex 1 p 91.
[152] T2-50 L17.
[153] T1-5 L17.
The abovementioned emails are not suggestive of a particularly close or effective communicative relationship between Ms Turner and Mrs Robinson in the early stage of Ms Turner’s tenure. On Mrs Robinson’s account, which I accept, Ms Turner spoke a lot about her style of management and told staff that if they worked with her their careers would soar, and if they did not their careers would not.[154] Hopefully this did not mean Ms Turner wanted members of her executive to behave as her mere acolytes. Nonetheless it is unlikely Mrs Robinson endeared herself to Ms Turner by describing a review as a farce or a team building workshop as dealing with the “fuzzy stuff” or advancing the elaborate proposal of someone acting in her position for three to four months to accommodate her inability to attend the workshop.
[154] T1-52 L8.
14 May 2010 Robinson learns of the existence of the WIFs[155]
[155] SOC [6(i), (j), (k)].
On 14 May 2010 Michelle Gaffney, the Acting Human Resources Officer, asked Mrs Robinson if she would agree to a mediation with Ms Holmes “to move forward”. Mrs Robinson indicated she had no problem with that, commenting, “[A]fter all, she’s only trying to defend herself in the PsyCare response”.[156] Ms Gaffney responded, “[A]nd all the other complaints.” Mrs Robinson immediately indicated she did not understand what Ms Gaffney was talking about. Ms Gaffney told her there was a handful of WIFs complaining about Mrs Robinson.[157] Mrs Robinson said she knew nothing of that and that if she was to go a mediation she would need to see what she was accused of. Ms Gaffney responded that she would seek approval from Ms Turner for the forms to be shown to Mrs Robinson, but told Mrs Robinson not to worry “because they were all reasonable management things that were very easily explained”.[158]
[156] T1-57 L23.
[157] T1-57 L27.
[158] T1-57 L32.
Mrs Robinson spoke with Ms Turner on the topic that day, explaining what she had been told and that she would need to see the WIFs if she was to go to a mediation.[159] Notably Ms Turner did not respond with any indication she was unaware a mediation was to be held. Mrs Robinson explained to Ms Turner that Ms Gaffney had told her she would contact Ms Turner to organise for copies of the WIFs to be given to Mrs Robinson. Mrs Robinson testified that Ms Turner responded, “[Y]eah, well, that’s not a problem, but, you know, they’re only … silly things that are no trouble whatsoever explaining [your] management decision over”.[160] On Ms Turner’s account she told Mrs Robinson “that she had nothing to worry about” in respect of the WIFs.[161]
[159] T1-57 L42.
[160] T1-57 L45.
[161] T4-64 L25.
Mrs Robinson understood from her conversation with Ms Turner, and I am satisfied Ms Turner indicated, that Mrs Robinson would soon be provided with copies of the WIFs.[162] That did not occur.
[162] T1-58 L6.
WIFs not given to Robinson despite requests[163]
[163] SOC [6(1-p)].
About two weeks later on 31 May 2010 Mrs Robinson spoke with Ms Gaffney about the WIFs. Mrs Robinson asked Ms Gaffney when she would get the WIFs, Ms Turner having indicated that she could have them. Ms Gaffney said she would “chase it up”.[164] Later that day or soon after, Mrs Robinson testified she told Ms Turner of her contact with Ms Gaffney and noted she still did not have the forms. On her account Ms Turner responded, “[W]ell, it’s not a problem, you know, you can have them”.[165] Ms Turner claimed to have no recall of such a conversation[166] but I accept it occurred.
[164] T1-58 L20.
[165] T1-58 L24.
[166] T5-68 L5.
The month of June 2010 then went by, still without Mrs Robinson being provided with copies of the Holmes WIFs. Mrs Robinson testified, and I accept, she raised the topic multiple times with Ms Turner who continued to say that Mrs Robinson could have them and that Ms Turner would sort it out, and Mrs Robinson could and should have them.[167] Ms Turner told her the matters complained of in the WIFs were quite trivial.[168] Mrs Robinson testified:
“I told her that I was getting more worried about it, because … I just felt … this Barbara situation was going to escalate and I wanted to know what it was about, and I asked her a lot of times to actually investigate me. I wanted to be investigated, because I wanted to have my professional – you know, I wanted to be either cleared or told that, you know, you mishandled this or you need to improve this and then work on it, but Susan told me there was no need for any of that and I was overreacting and … that … I was very good at my job and she reassured me that there was no risk to me, because she would keep me safe.”[169] (emphasis added)
[167] T1-59 L9.
[168] T3-37 L22.
[169] T1-59 L15.
Mrs Robinson also raised the topic with Helen Reed, Manager Occupational Health and Safety, and Mrs Reed told her not to get “so worked up” and “so worried about it” saying, “[W]e’ve looked at them and they’re just things that, you know, you can easily explain”.[170] Mrs Robinson was troubled that, despite being told the matters complained of in the WIFs were readily explicable, no-one ever told her “what they actually were”.[171] She told Ms Reed she was “getting more and more worried about not having received the WIFs”.[172]
[170] T1-59 L27.
[171] T1-59 L29.
[172] T1-59 L30.
Trouble at the team building workshop[173]
[173] SOC [6(r), (s)].
The team building exercise finally proceeded in Cairns in late June 2010.[174] On the first day of the team building exercise Ms Turner was out of the room for a substantial part of the day, attending to a serious HR matter.[175] She returned only sporadically to the workshop as the day progressed.[176]
[174] T1-61 L37.
[175] T1-62 L16, T4-52 L26.
[176] T1-62 L30.
Ms Robinson returned to the room at the end of the day when the participants were giving feedback on what they had or had not gained from the day. Ms Turner was present when Mrs Robinson gave her feedback. On Mrs Robinson’s account the feedback she gave was positive in that there had been discussion of an organisational philosophy she had not hitherto been familiar with.[177] In this context Mrs Robinson commented, apparently by way of contrast, that staff often get sent to workshops she referred to as “love-ins”, where they do not hear new things.[178]
[177] T1-63 L2, T3-39 L46 – T3-40 L14.
[178] T1-63 LL2-8, T3-40 L1.

This sparked a loud, stern and erroneously founded rebuke from Ms Turner of Mrs Robinson, in front of the rest of the attendees. Ms Turner raised her voice saying “how inappropriate” Mrs Robinson was and how Ms Turner was “sick and tired” of people referring to such workshops as “love-ins”.[179] Ms Hoins, Director of Corporate Services, testified Ms Turner “did snap” and “was terse in her response”.[180] Ms Perriman testified Ms Turner raised her voice.[181] Ms Woodham described her as loud and abrupt.[182] In Ms Turner’s testimony she acknowledged she expressed concern about Mrs Robinson’s comment because they were there to try and work effectively.[183] She did not concede being aggressive but acknowledged speaking “very forthrightly”.
[179] T1-63 LL9-32.
[180] T6-97 L7.
[181] T7-8 L29.
[182] T3-48 L35.
[183] T4-53 L19,
It appears from the combined accounts of other witnesses that Ms Turner did by disposition have a very reactive, assertive manner, particularly when perceiving staff were in disagreement with her or her approach, tending to raise her voice and speak tersely to them.[184]
[184] T2-91 L38, T6-14 LL32-36, T6-30 L5, T6-80 L14, T6-84 L36, T6-85 L3, T6-85 L26, T6-96 LL37-43, T7-36 L6.
Ms Turner agreed it appeared Mrs Robinson was upset by her comments.[185] Others present also noticed Mrs Robinson was upset.[186] Mrs Robinson said, “I don’t think you’ve understood what I said”.[187]
[185] T4-53 L8, L25, L44.
[186] T6-29 L40, T6-82 L8, T6-86 L14, T7-8 L1.
[187] T1-64 L10.
That evening, when Mrs Robinson attempted to convey a message to Ms Turner, she was abrupt and non-communicative towards her[188] as if they were not on speaking terms. Overnight some of the executive told Ms Turner she had been “quite tough” in her comment to Mrs Robinson and Ms Turner accepted that feedback.[189] During the team building workshop the following day there was a conversation in the presence of all about what had occurred.[190] Ms Turner apologised for how she had reacted the previous day.[191] Mrs Robinson then explained it had been difficult for her to go to the workshop and that all they had been doing the previous afternoon was complying with a request to sum up the day and what participants had “got out of it”.[192]
[188] T1-64 LL16-27.
[189] T4-53 L29, T7-9 L8.
[190] T3-41 L12.
[191] T1-65 L12, T4-53 L30, T6-86 L27.
[192] T1-65 L15.
Paragraph 10(f) of the SOC identifies Ms Turner’s above discussed rebuke of Mrs Robinson as one of a number of instances of Ms Turner “mistreating and harassing” Mrs Robinson. The label of “harassing” is not apt to a single incident in that it connotes repetition. “Mistreating” is an accurate, though broad term. “Humiliation” is a more apt specific description.
Ms Turner’s unjustified blaming of Mrs Robinson may have resulted from error during a difficult day but on any day it was obviously unacceptable that her purported correction of Mrs Robinson involved an ill-tempered, humiliatingly loud and public dressing down. Ms Turner’s subsequent apology suggests she realised that.
I readily conclude an employer’s duty to provide a safe system of work requires that when an employer or manager considers it necessary to correct staff the correction should be justified and not executed in an objectively humiliating way. I include the qualification, “objectively”, because an overly sensitive staff member may find any form of correction humiliating. The reality is that the prospect of being corrected is an unremarkable incident of employment. However, unjustified correction involving an intemperate tone or language and carried out in front of others involves qualities which employees of ordinary sensitivity will find humiliating.
6 July 2010 Reed and Perriman speak with Robinson regarding Holmes[193]
[193] SOC [6(v)].
On 6 July 2010 Ms Reed and Ms Perriman visited Mrs Robinson at her office. The subject of a mediation was again raised in connection with “a way to move forward … with Barbara Holmes’ situation”.[194] Once again Mrs Robinson indicated she was not opposed to mediation but first needed to know what had been alleged against her.[195] Both Ms Reed and Ms Perriman purported to reassure Mrs Robinson that the WIFs only raised minor management matters that Mrs Robinson could explain.[196] Ms Reed and Ms Perriman indicated they would again approach Ms Turner for approval to give copies of the WIFs to Mrs Robinson.[197] Notably Ms Turner acknowledged in evidence-in-chief that while she could not recall the mediation proposal she would have been told about it.[198]
[194] T1-67 L7, T7-7 L40.
[195] T1-67 L12, T7-42 L41.
[196] T1-67 L13, T3-97 L3, T7-59 L42.
[197] T1-67 L15, T7-80 L42.
[198] T4-55 L9.
That was an unsurprising concession. It is inherently likely that as CEO she would have been well aware of a proposal whereby one of her executive was to be asked to participate in a mediation with a notoriously problematic staff member. What is surprising is that as CEO she would let the mediation proposal drift for so long if she was as genuinely robust about the vexatiousness of the WIFs as she claimed in evidence. For example, she claimed in evidence to have met with Ms Holmes and Ms Holford separately to indicate to them she was no longer prepared to put up with “this kind of conduct in this health service”.[199] According to her evidence-in-chief, she indicated to them:
“[M]y expectation is that everyone in this place deserves a safe work environment, that – that was not only accorded to them, but it was accorded to Mary-Rose. And I felt, with those WIFs and with Holmes, that they were such a long time ago and that her conduct was exacerbating the situation. And if she wanted to work through solutions, this was not the way to do it. And so, I made it quite clear to both of them that I was not prepared to put up and deal with this type of conduct where it was payback, vindictive, going backwards and forwards, and that I would be dealing with it and they needed to understand that.”[200]
[199] T4-56 L23, T4-57 L7.
[200] T4-56 LL25-32.
Ms Turner was vague as to when this alleged conversation occurred. In the context of her evidence-in-chief it appeared she was referring to a relatively early stage after she became aware of Ms Holmes’ eight vexatious WIFs. However, in cross-examination she said it would have occurred at some stage in the latter half of the year.[201] She was unable to explain why she did not have such a conversation, particularly with Ms Holmes, back in April 2010, back when she first became aware of Ms Holmes’ vexatious WIFs.[202] I did not believe Ms Turner’s claims of robustness about her approach to Holmes and the vexatiousness of the WIFs, claims which were not reflected in Ms Turner’s conduct.
[201] T5-55 L27.
[202] T5-55 L30.
7 July 2010 Reed emails Robinson the WIFs[203]
[203] SOC [6(w)].
By email of 7 July 2010, after seeking Ms Holmes’ consent to disclose the WIFs,[204] Ms Reed emailed Mrs Robinson the WIFs, writing:
“Please respond to the incident forms by the 21^st of July. If you need additional time please let me know. We will then arrange a meeting with yourself, Nicky Perriman and me to discuss. Then a meeting including Barbara Holmes and Karen Bromhead.”[205]
[204] T7-103 L27.
[205] Ex 1 p 93.
On Ms Turner’s account she had given her approval for the WIFs to then be given to Mrs Robinson because Mrs Robinson had asked to see them and wanted to respond to them.[206] That does not explain the long delay in actually approving that course. Nor does it not explain why, when Mrs Robinson was eventually supplied with the WIFs, she was requested to respond to them.
[206] T4-55 L23, T4-56 LL1-8.
Both points require analysis. Firstly, as to the delay in providing the WIFs, this grounds the allegation of negligence in paragraph 10(a) of the SOC that Ms Turner failed to provide Mrs Robinson with the Holmes WIFs in a timely manner. Mrs Robinson learnt of and was told she would be given copies of the WIFs on 14 May 2010. Despite that and despite her subsequent repeated requests, she was not given copies of the WIFs until eight weeks later.
It is significant Ms Turner knew from the time of her arrival that Mrs Robinson was concerned about Ms Holmes. Against that background Ms Turner would have well appreciated Mrs Robinson would be very concerned at the news Ms Holmes WIFs had targeted her. Moreover, Ms Turner well knew her failure to follow through on Mrs Robinson being given the Holmes WIFs was having an exacting toll upon Mrs Robinson.
Mrs Robinson was evidently so worked up in Ms Turner’s presence that Ms Turner told her she was overreacting and purported to reassure her she would keep her safe. That Ms Turner said such things bespeaks her awareness of how peculiarly concerning the situation was to Mrs Robinson. It would have been obvious to Ms Turner against this background and the fact of Mrs Robinson’s repeated requests, that not having copies of the WIFs promptly supplied to Mrs Robinson, after having undertaken to do so, would only worsen Mrs Robinson’s concerns.
It is unnecessary to consider whether the defendant ordinarily had an automatic duty to supply copies of WIFs alleging workplace bullying or harassment to the alleged perpetrator. That is because the defendant through Ms Turner had indicated to Mrs Robinson on 14 May, and subsequently, that copies of the Holmes WIFs would be supplied to her. Given that undertaking, the knowledge of Mrs Robinson’s concerns about Ms Holmes and the knowledge that a failure to promptly honour the undertaking would worsen Mrs Robinson’s concerned state (in each instance Ms Turner’s knowledge being attributable to the defendant) I conclude the defendant had a duty of care to provide copies of the Holmes WIFs to Mrs Robinson in a timely manner.
The defendant’s failure to provide copies of the Holmes WIFs to Mrs Robinson in a timely manner was a potential breach of the defendant’s duty of care. While other staff had some involvement in that failure, its substantial cause was the conduct, largely by omission, of Ms Turner, conduct for which the defendant would be vicariously liable.
This potential breach forms the initial stage of what was to become an on-going failure to deal determinatively with the complaints which were raised by Ms Holmes in her WIFs against Mrs Robinson.
As to the fact that, when Mrs Robinson was eventually supplied with the WIFs, she was requested to respond to them, Ms Turner claimed that she did not request or direct that Mrs Robinson be asked to respond to the WIFs.[207] That is inherently unlikely but, even if there had been some misunderstanding about that as between Ms Reed and Ms Turner, this was yet another opportunity for Ms Turner to articulate her supposedly strong view that the Holmes WIFs were vexatious and complained of unremarkable, reasonable management action. Just as Ms Turner could have endorsed the WIFs to the effect that they were vexatious and no further action was required, equally she could have specifically directed that in Mrs Robinson being supplied with the WIFs Mrs Robinson was to be told Ms Turner did not require any response from Mrs Robinson because Ms Turner was already of the view that they were vexatious and complained of innocuous management action.
[207] T4-65 L18.
According to Ms Turner, at some subsequent stage she had a conversation to the following effect with Mrs Robinson:
“I was trying to reassure her of my view…I told her that to me this was just a process that we all had to go through; that I felt that they were vindictive, vexatious type of actions; and that she felt compelled that she had to respond. And so, I said, well, if you have – if that’s what you want to do, then do it.”[208]
[208] T4-55 L40.
Ms Turner’s purported reassurance of Mrs Robinson is at odds with the process over which she was presiding in respect of the WIFs. Staff liaising with her had more than once approached Mrs Robinson about the need for a mediation between her and Ms Holmes and when copies of the WIFs were finally supplied to Mrs Robinson they came under cover of correspondence seeking Mrs Robinson’s response to the WIFs within 14 days. Despite her protestations in evidence that she regarded the WIFs as vexatious and not requiring any action Ms Turner was knowingly presiding over a process which drifted on inconclusively, thus knowingly perpetuating the angst Mrs Robinson’s awareness of the Holmes WIFs had triggered.
Content of the WIFs
Mrs Robinson commenced reading the Holmes WIFs on first receiving them on 7 July, but became distressed and aggravated by their content.[209] Because of that and also because in the days following she was to represent the district at a forum attended by Ms Holmes, she postponed reading them.[210]
[209] T1-68 L14.
[210] T1-68 LL12-20, T3-28 LL7-15.
On around 17 July Mrs Robinson again tried to read the Holmes WIFs but experienced difficulty. She enlisted the support of a colleague to finish reading them.[211] Mrs Robinson became more distressed because the WIFs were more malicious than she had expected.[212]
[211] T1-68 L30.
[212] T3-32 L2.
The eight WIFs finally received by Mrs Robinson consisted in each instance of a two-sided form headed Workplace Incident Report, along with annexures.[213] The production of these forms at trial involved a degree of confusion. In the first instance they were included within exhibit 1, but those copies only contained the first page in each instance of the two-sided form. Two-sided versions of the forms were tendered as exhibit 14 at trial. Later still, two-sided copies of those forms along with two further WIFs submitted by Ms Holmes became exhibit 16. The two further WIFs do not appear to have been supplied to Mrs Robinson at any stage.[214]
[213] Ex 14, 16 (copies without the second page of the form are also contained in Ex 1 from pp 71-86).
[214] For example, they are not mentioned in Mrs Robinson’s detailed response to the WIFs that she was supplied – see ex 1 p 110 et sequitur. Her reply only deals with the eight WIFs, versions of which appear in both exhibits 1 and 14.
WIFs contain two major headings, namely “Workplace Incident Report” at the top of page 1 and “Incident Investigation” one-third of the way down page 2. It is apparent from the form’s content that the Workplace Incident Report component of the form is to be completed and signed by the person reporting the incident. The Incident Investigation section of the report principally consists of the management review section which, in the main, requires the entry of information going to the cause of the incident and the action taken to prevent recurrence of it. The balance of the incident investigation section of the form contains a space for the Department head to indicate whether the Department head concurs with the management review, as well as a space for comments by the OHS Unit, including whether further investigation is required and whether WHSQ has been notified.
Each of the WIFs in the present case have endorsements in the Workplace Incident Report section of them, addressing the pro forma information sought and are signed by Ms Holmes as the person completing the report. In this section of each WIF the “Nature of injury/illness” column bears a cross against the description “Mental illness/stress”. In each of the forms the “Body part affected” column of the form bears a cross against the description “Psychological”. In each of the forms the “What happened” column of the form bears a cross against the description “Harassment/bullying” and sometimes against the description “Work pressure”. In each of the forms the “Prime cause” column of the form bears a cross against the description “Violence perpetrator” and, in most of the forms, against the description “Verbal violence”.
In the Incident Investigation section of each of the WIFs, the management review section and the OHS Unit comments section has not been endorsed in any way. Four of the exhibit 14 forms, bearing identification numbers 401563, 401557, 401556 and 401544, do contain an endorsement in the Department head comments and the other four forms do not. In contrast, all of the WIFs in exhibit 16 bear an endorsement. That is not the only variation apparent on a comparison of page 2 of the WIFs in exhibit 14 to the WIFs in exhibit 16. In some instances it is obvious that the crosses inserted in the risk rating section of page 2 of the forms do not match. In any event, in each of the instances where there is an endorsement in the Department head comments section, excluding a further form submitted on 10 November 2010, the endorsement is by Ms Turner dated 10 April 2010 and states “referred for independent investigation”.
As to the substance of the incidents complained of in the eight WIFs given to Mrs Robinson, they are in summary:
(a)     WIF ID No 401563
Incident date: 8 July 2009
Ms Holmes’ signature date: 15 March 2010
Ms Holmes alleges that during a meeting with Ms Lees from PsyCare and Mrs Robinson, Mrs Robinson expressed the belief that Ms Holmes showed no leadership and did not contribute sufficiently to the clinical aspect of her role and teaching of her staff. Ms Holmes alleges this meeting immediately preceded a ward meeting which Mrs Robinson also required Ms Holmes to attend. Ms Holmes alleges the two meetings were organised in a deliberate attempt to upset her (presumably at the first meeting) and thus show her in a negative light (presumably at the second meeting).
(b)     WIF ID No 401557
Incident date: 24 July 2009
Ms Holmes’ signature date: 19 March 2010
Ms Holmes and Ms Holford had a discussion relating to the timing of a generator changeover in connection with a planned electricity outage. When Ms Holford attempted to explain that she and Ms Holmes had no input into the timing of the outage, Mrs Robinson interrupted and told her to “shut up and listen for a change” and went on to state she went home the previous day thinking how she could have “such a stupid DON and NUM”.
(c)     WIF ID No 401556
Incident date: 29 July 2009
Ms Holmes’ signature date: 15 March 2010
During a meeting between Mrs Robinson and Ms Holford, Mrs Robinson stated she had not called the “DON and NUM stupid” whereas Ms Holmes “was present on 24^th when she did”.
(d)     WIF ID No 401549
Incident date: 9 September 2009
Ms Holmes’ signature date: 15 March 2009 (sic)
After a meeting with Mr Stephenson and Mrs Robinson in relation to the lack of progress in preparing for accreditation, Mrs Robinson continued to discuss the topic with Ms Holmes in the presence of other staff, wanting to know why “if the DON and NUM at Cooktown can get it done, why can’t the DON and NUM here do it”.
(e)     WIF ID No 401542
Incident Date: noted as 15 March 2010 but actually June 2009 and earlier
Ms Holmes’ signature date: 19 March 2010
Ms Holmes complains her application to attend a midwifery update course was denied by Mrs Robinson without reasonable explanation. Ms Holford advised her of the denial, saying Mrs Robinson “felt it was not a good time to be going away”. The midwifery course application was 15 June 2009. The WIF also complained of earlier course denials commencing in 2007.
(f)      WIF ID 401545
Incident Date: noted as 15 March 2010 but the incidents must have been in 2009 or earlier
Ms Holmes’ signature date: 19 March 2010
During Ms Holmes’ professional development plan meetings with Mrs Robinson, Mrs Robinson gave Ms Holmes extra work with set timeframes and when Ms Holmes expressed concern she would not be able to perform the work in the time available, Mrs Robinson was unsupportive. Ms Holmes also felt Mrs Robinson was trying to intimidate her by her references to dealings with the Nurses Registration Board regarding problem nurses and their removal. Ms Holmes felt Mrs Robinson was trying to destabilise Ms Holmes’ working relationship with Ms Holford by querying why she had been present as a support person for Ms Holford at a former meeting with Mrs Robinson.
(g)     WIF ID 401534
Incident Date: 23 March 2010
Ms Holmes’ signature date: 22 March 2010
At a meeting with Mrs Robinson, Ms Holmes mentioned the Acting DON had Ms Holmes assist the NUM in the previous week with data entry and Mrs Robinson stated “you’re not to have anything to do with the NUM’s role, it causes blurring of the lines … your return to work needs to be kept separate from the NUM’s role as there were problems 12 months ago with the same thing and staff had voiced concerns”. Ms Holmes complained she felt this was an attempt to isolate her from her staff.
(h)     WIF ID 401538
Incident Date: 25 March 2010[215]
Ms Holmes’ signature date: 25 March 2010
[215] The incident date is stated to be 25 April 2010 but the relevant work day is stated as 25 March 2010.
Ms Holmes was advised by another staff member that a document titled “Proposed performance management strategy – Barbara Holmes” was lying face-up in the printer in the photocopier room within view of three staff there present.

When further pressed in cross-examination about there being a vast array of positions in hospitals and health organisations which Mrs Robinson could work in, her response included the following:
“I’m certainly not able to function any higher than assistant nurse, and I don’t have a registration, and I can’t get that back. So I would only ever – if you’re talking about nursing – would be a personal care attendant or an AIN, but there are increased risks to me for that because I would sometimes probably be found at fault at working outside my scope of practice, which is very different, because I was – I was a registered nurse and I would probably forget that I was, you know, not able to assess or do anything other than bathe and feed people.”[751]
[751] T4-19 LL1-8.
When cross-examined about her ability to take on administrative positions at a managerial level that would not require clinical registration, she testified:
“No, but they would require the area I was known to have good expertise in, and that’s managing people, and I can’t do that because with people comes conflict.”[752]
[752] T4-19 L13.
As to her capacity to manage a clinical group she responded:
“That position still has HR aspects and management, and is decision making, and I’m flat out making a decision what to wear.”[753]
[753] T4-19 L20.
I preferred the opinions of both Dr Likely and Dr Oelrichs, both by reason of the more comprehensive analysis in their reports and by reason of the fact that, unlike Dr Shaikh, they had each had a relatively recent opportunity to again assess Mrs Robinson.
While he had not examined Mrs Robinson since 2012, Dr Shaikh did peruse the transcripts of and listened to recordings of Mrs Robinson’s evidence at trial. Particularly on the strength of this he disagreed with Dr Likely’s and Dr Oelrichs’ rating of Mrs Robinson’s concentration impairment as being inconsistent with “her attendance at the trial”, her “extended evidence” and her ability “to follow complex instructions, as evidenced by her presentation during the trial”. [754] The implication being advanced was, in effect, that Mrs Robinson had performed better than expected for someone of the level of concentration deficit assessed by Dr Likely and Dr Oelrichs (“the witness performance implication”).
[754] Ex 28 p 2.
Dr Shaikh enlarged upon these comments in his evidence-in-chief, asserting that while it was reasonable that Mrs Robinson had a good recollection of events which were so important,[755] he perceived from his perusal of the trial transcript she had exhibited a capacity to concentrate and deal with complex questions which should not be a capacity unique to the circumstance of the trial. He opined she would have the same ability to concentrate in her existence beyond the trial environment.[756]
[755] T6-54 L7.
[756] T6-52 L40, T6-54 L20.
Dr Shaikh’s witness performance implication appeared to have been influenced by an assumption on his part that, while Mrs Robinson was not asked to follow complex instructions during the trial, she must have been called upon to follow complex instructions in the long course of the dispute culminating in the trial.[757] His assumption appeared to be that because Mrs Robinson had been involved in lengthy interviews and discussions about her case, she must have been able to follow complex instructions.[758] A source for the understanding Mrs Robinson had participated in lengthy interviews appeared to be this note by Ms Roubos:
“She reports often on pre-injury vs post-injury experience and really wants the legal process completed. Spent 5 hrs with her legal team recently. Finds it very stressful and beginning to defuse her own value from this process, which protects her mental health.”[759]
That entry makes it obvious Mrs Robinson would have found the time spent with her legal team stressful but it says nothing of the complexity and variability of the demands placed upon Mrs Robinson’s concentration or the levels of concentration actually achieved by her during the time she spent with her legal team. It provides no support for Dr Shaikh’s aforementioned assumption, to which I give no weight.
[757] T6-55 L5.
[758] T6-54 L36.
[759] Ex 31 5/5/15.
The airing of the witness performance implication had its debut before Dr Shaikh was asked to consider it, when the defendant’s counsel put to Mrs Robinson that her concentration, her ability to coherently present her case, was very good, to which she responded:
“It’s very, very patchy and very unlike my previous. And I get very lost in these documents. I cannot focus, and that is why I cannot understand you, because I can’t hear the – I don’t focus on the rest of what people are saying. I’m in great difficulty up here.”[760]
[760] T3-95 LL28-32.
That suggestion and the witness performance implication were at odds with my own impression of Mrs Robinson’s evidence. It appeared to me that Mrs Robinson was well prepared to give evidence but nonetheless found it a demanding experience. She at times appearing drained and tired, occasionally becoming upset, but pressed on without complaint. She was undoubtedly in the witness box for a very long time but she had no choice other than to be stoic about the duration of her testimony and she certainly had no choice but to give evidence if she wanted to pursue her claim. She appeared to be conscientious in trying to answer questions asked of her, which is unremarkable. She was able to remember a lot of information about what had happened to her in connection with this case, occasionally correcting herself or, very rarely, the questioner. Given the pivotal importance that information has come to assume in her life it is hardly remarkable she was reasonably familiar with its detail. That said, she was often aided by being taken to contemporaneous documents when being questioned. Furthermore, there were various instances during her testimony when she could not recall some factual detail, became confused or seemed to lose focus, consistently with her experiencing difficulty in concentrating.[761] Overall her performance as a witness did not strike me as being at all at odds with her reported condition and capability.
[761] Not all such instances are apparent from the transcript, but see for example, in evidence-in-chief, T1-36 L24, T1-36 L45, T1-37 L26, T1-42 L6, T1-42 L29, T1-46 L19, T1-47 L44, T1-49 L19, T1-51 L6, T1-54 L37, T1-56 L6, T1-57 L38, T1-58 L38, T1-65 L12, T1-70 L4, T1-72 L15, T1-74 L42, T2-8 L19, T2-16 L18, T2-16 L36, T2-39 L14, T2-41 L36, T2-43 LL1-5, T2-43 LL26-29, T2-43 LL1-5 and T2-52 L9, and in cross-examination, T3-15 LL21,31, T3-22 L5, T3-24 L13, T3-32 L20, T3-42 L26, T3-59 L9, T3-59 L32, T3-73 L8, T3-79 L14, T3-95 L30, T3-95 L45, T3-96 L11, T3-97 L28, T3-100 L22, T3-100 L32, T3-101 L3, T3-101 L25, T3-105 L6, T4-10 L18, T4-10 L25, T4-11 L47, T4-13 L45, T4-16 L35, T4-19 L22, T4-22 L8, T4-23 L45, and T4-24 L46.
When the witness performance implication was explored in cross-examination with Dr Likely he rejected it emphatically. He pointed out Mrs Robinson’s capacity to recall relevant information was not a good indicator of her capacity for return to work. Rather, he pointed out it merely reflected that she was well prepared for the trial and was recalling information which had become deeply engrained on her psyche, having been taken through it so many times in the long history of this matter.[762] Dr Likely testified:
“I don’t believe that you can draw an equivalent to in the courtroom atmosphere and work in that the demands are completely different. The demands of a very senior nurse in terms of managing other staff, attending to very unwell patients and dealing with interpersonal conflict on a daily basis is very difficult – it’s very different to giving evidence in a courtroom for a case which she has been waiting to arrive at the courtroom for some years now. I think they’re two very different situations and I don’t think that one can extrapolate that because she was able to answer your questions and, indeed, by the sound of it correct you a number of occasions that that could be extrapolated that she is fit to return to work.”[763]
[762] T4-97 LL25-36.
[763] T4-98 LL2-11.
Dr Oelrichs was also obviously unimpressed by the witness performance implication when it was raised with her in cross-examination, observing it was better to assess by seeing in person than by reference to a written transcript.[764] She observed that while Mrs Robinson was able to present with a reasonable focus and concentration in providing information relevant to the case, information she had become very familiar with over a prolonged period and which had become all consuming, Mrs Robinson’s capacity to multi-task and focus on more complex everyday things associated with work was “not very good” and “quite reduced”.[765]
[764] T5-19 L39.
[765] T5-19 L42 – T5-20 L40.
For all of these reasons I reject Dr Shaikh’s witness performance implication.
Dr Shaikh also opined Dr Likely’s rating in relation to the category of travel was inconsistent with it allegedly being known that Mrs Robinson is able to travel independently.[766] In fact Dr Likely’s opinion of 2 March 2015 is consistent with the notes of Ms Roubos’ consultations with Mrs Robinson. For example, on 7 October 2014 Ms Roubos noted:
“Is not driving much currently – friend drove today – finds she gets disoriented/distracted easily.”[767]
Also, on 11 November 2014 Ms Roubos noted:
“Not driving currently – but assures me she will!”[768]
[766] Ex 28 p 2.
[767] Ex 31.
[768] Ex 31.
It does appear, however, that after the time of Dr Likely’s 2 March 2015 report Mrs Robinson made some modest progress so as to be able to drive herself about locally, as reflected in Ms Roubos’ notes of 24 March 2015[769] and more particularly Dr Oelrichs’ report of 14 June 2016[770]. It follows that while Dr Likely’s rating of 3 for travel was likely an accurate assessment at the time, Dr Oelrichs’ rating of 2 is more up-to-date.
[769] Ex 31.
[770] Ex 18 pp 9, 19.
Dr Shaikh’s supplementary report did not attempt any rating of individual categories in accordance with the psychiatric impairment rating scale, rendering irrelevant his suggested figure of 5 per cent.
PIRS Rating accepted by the court
In the upshot I give no weight to Dr Shaikh’s testimony in determining what PIRS rating should be accepted by the court.
Section 6 of Schedule 8 of the Regulation relevantly provides:
“(2) The PIRS rating for the mental disorder of the injured worker is the PIRS rating accepted by the court.
(3) A PIRS rating is capable of being accepted by the court only if it is –
(a)assessed by a medical expert as required under Schedules 10 and 11; and
(b)provided to the court in a PIRS report as required under Schedule 10, Section 12.”
The PIRS assessments of both Dr Likely and Dr Oelrichs each comply with the requirements of s 6(3) and thus either are potentially capable of being accepted by the court.
As already observed I perceive Dr Oelrichs’ ratings for social functioning and social and recreational activities were somewhat lower than warranted.
As to Dr Likely’s assessment, it is true, for reasons explained above, that Dr Likely’s rating for travel, while right at the time, was probably one rating too high. That said, a one class modification of his travel ratings down would occasion no change to his mean score and only a two per cent reduction of his ultimate PIRS rating of 24 per cent.
For the purposes of the present exercise it thus remains a generally accurate rating. In the circumstances, I prefer Dr Likely’s assessment and, pursuant to s 6, I accept his PIRS rating of 24 per cent as the PIRS rating for Mrs Robinson’s mental disorder.
General Damages
Section 306O of the Act 2003 (Qld) requires an injury scale value (“ISV”) to be assessed if general damages are to be awarded and s 306P requires that general damages be calculated by reference to the general damages provisions prescribed by regulation. Those provisions invoke the application of schedules within the Regulation.
Pursuant to item 11 of schedule 9 a mental disorder with a PIRS rating between 11 and 30 per cent is a serious mental disorder and has an injury scale value (“ISV”) range of 11 to 40.[771]
[771] It is illustrative that, while not warranted, even if the above alteration exercise were reversed in application to Dr Likely’s ratings, causing commensurately modest reductions, his mean score would remain at 3 and his aggregate reduce to 17, which, as explained, amounts to a serious mental disorder with an ISV range the same as it would be pursuant to his existing ratings.
Mrs Robinson’s age and insight, the matters already canvassed as to pain, suffering and loss of amenity of life and the improbability of psychiatric difficulties otherwise having appeared in this hitherto mentally robust plaintiff all support an assessment in about the middle range (in a range 11 to 40). The PIRS rating of 24 (in a range of 11 to 30) is consistent with a moderately higher than mid-range outcome for a serious mental disorder but the above observations about Dr Likely’s and Dr Oelrichs’ ratings of discrete areas of impairment suggests a mid-range outcome is more correct overall. I assess Mrs Robinson as having an ISV of 25.
No arguments were advanced as to when I ought regard the injury as having been sustained for the purposes of selecting the appropriate table in the Regulation’s schedule 12. Having regard to the evidence of apparent onset of Mrs Robinson’s symptoms I adopt table 1 and arrive at an award of $41,200.
No interest can be awarded on that amount.[772]
[772] Per s 306N(1) of the Act.
Past economic loss
The psychiatric opinions about Mrs Robinson’s capacity to return to remunerative work have already been canvassed. It is readily apparent that the opinions of Dr Likely and Dr Oelrichs, preferred by me, support an assessment of past economic loss on the premise Mrs Robinson has been unable to return to remunerative work. I am fortified in that conclusion by the lack of success to date of Mrs Robinson’s attempts by volunteer work and quilting to build a capacity to advance to remunerative work.
Prior to her injury Mrs Robinson showed no indication that her capacity or desire to work as a District DON would have dwindled by now. On the other hand it is not suggested she should be assessed on the premise of having been likely to have advanced to a materially more remunerative position or less remote position than her former position. There is no need for notional adjustments given the relative certainty of prediction about economic loss to the present time.
In her former position Mrs Robinson was earning a gross annual income of $134,573.83[773] plus an isolation allowance of $6,000.[774] Deducting tax of $37,739.01 and adding the $6,000 allowance gives rise to an annual net income of $102,834.82. That is a net weekly income of $1,977.59.
[773] Ex 6 p 15.
[774] Ex 2 p 252, T1-31 L33. Other allowances are not claimed.
From 17 January 2011 to today, 8 August 2017 is a period of 6.58 years or 342 weeks.
Mrs Robinson’s past economic loss is therefore 342 weeks x $1,977.59 per week = $676,335.78.
As to interest on past economic loss it is necessary to bear in mind it ought be applied to a total reduced by statutory compensation received of $186,289.02,[775] that is, to a total of $490,046.76.
[775] Ex 2 p 228.
Section 306N(3) provides the appropriate interest rate is the 10 year Treasury bond rate at the beginning of the present quarter, namely, 2.6 per cent.
The consequent calculation is therefore $490,046.76 x .026 x 6.58 years x .05 = $41,918.59.
As to past loss of superannuation, the relevant contemporary compulsory rate is 9.5 per cent. The plaintiff claims that rate on the aforementioned net weekly income, that is, $1,977.50 x .095 = $187.86. The relevant period to compensate is 199 weeks, consisting of:
(a)     1 August 2011 to 15 December 2011 – 19 weeks leave without pay;
(b)     27 May 2013 to 27 August 2013 – 13 weeks leave without pay;
(c)     22 May 2014 to today, 8 August 2017 – 167 weeks since termination.
$187.86 per week x 199 weeks = $37,384.14
Special Damages
The plaintiff has incurred:
(a)     medical expenses of $2,371.10;
(b)     rehabilitation expenses of $18,422.10;
(c)     mediation expenses of $1,339.42;
(d)     travel expenses of $3,412.16.
To that total of $25,544.78 it is necessary for this exercise to add $49,238.16 worth of expenses paid by WorkCover,[776] giving rise to special damages of $74,782.94.
[776] Ex 2 pp 214-227.
As to interest on special damages, again calculated per s 306N of the Act, it ought only apply to the unpaid total of $25,544.78. Interest to be awarded on special damages is therefore $25,544.78 x .026 x 6.58 years x .5 = $2,185.10.
Future Economic Loss
I have already accepted the opinions of the two psychiatrists who regard Mrs Robinson as being permanently incapacitated from undertaking any form of remunerative work. It is of course conceivable that an injured worker whose condition prohibits a return ever to remunerative work at their former level may in time experience the fortitude and luck to become engaged in some modestly remunerative employment at an unskilled or low skill level. However, this is a case of psychiatric injury. Mrs Robinson’s impairments are not physical. Her difficulties with interacting with groups of people, concentrating, decision making and the like are deficits permeating her general capacity to perform remunerative work at any level.
In time, with the vindication of this judgment behind her, she may gradually experience better adaption to coping with some aspects of her condition so that it does not so significantly impede her capacity to potentially perform some remunerative work. However, at 59, time is hardly on her side in the employment context. Given the opinions of Dr Likely and Dr Oelrichs, I regard the future employment prospects of Mrs Robinson as being so negligible to the assessment of future economic loss as to be an irrelevant discounting factor other than its implicit factoring into a global discount for vicissitudes.
Mrs Robinson asserted she would have continued working until she was aged 67,[777] which is a reasonable expectation in the present era and coincides with the pension entitlement age in Australia for persons of Mrs Robinson’s year of birth. She postulated she may have worked on to age 70[778] but in the end result this was not pursued by her as a foundation for this calculation. I will assume she would have worked for another eight years to age 67. It is conceivable that she may have advanced to a higher paid position but that probably negligible prospect is at least offset by the prospect she may have elected to scale back to a less well paid position as she approached retirement.
[777] Ex 5 [130].
[778] T4-20 LL30-37.
The plaintiff’s submission that the above identified net weekly income figure of $1,977.59 ought be adopted without notional award increases is a reasonable premise for the purpose of informing the assessment of likely future economic loss.
Turning to an appropriate discount for vicissitudes of life, it is relevant that the weekly income figure to be adopted already involves discounting in the sense no allowance for likely pay increases is made. Mrs Robinson had no pre-existing material deficits. There is no suggestion her diabetes was likely to become disabling. She had handled the slings and arrows of professional life well, rising successfully through the defendant’s ranks in likely challenging regional nursing settings. Until her employer caused her injury, depriving her of her career, it is likely she would have robustly continued on at the pinnacle of that career. An appropriate discount for vicissitudes is 12 per cent.
Adopting a figure of $1,977.50 per week for eight years, the use of a multiplier of 380 identifies a present value of $751,450. Discounted by 12 per cent for vicissitudes this gives rise to an award for future economic loss of $661,276.

As to future loss of superannuation I adopt a calculation rate averaging the presently mandated future rates[779] to 10.125 per cent. Thus the future loss of superannuation on $661,276 is $66,954.19.
[779] 17/18 9.5%, 18/19 9.5%, 19/20 9.5%, 20/21 9.5%, 21/22 10%, 22/23 10.5%, 23/24 11%, 24/25 11.5%.
Future Expenses
The evidence shows the management of Mrs Robinson’s condition requires the long term continuation of her medication,[780] counselling and psychiatric consultations.[781]
[780] Ex 18 p 16.
[781] Ex 18 p 17.
Existing information about expenditure shows:[782]
(a)psychiatric counselling with Dr Likely from 31 January 2013 to 26 August 2016 (230 weeks) cost $16,050, a weekly average of $69.78;
(b)counselling variously with psychologists Ms Roubos and Ms Kelly from 15 January 2013 to 31 August 2016 (176 weeks) cost $2,372.10, a weekly average of $13.47;
(c)antidepressant medication from 26 April 2012 to 5 September 2016 (228 weeks) cost $1,339.42, a weekly average of $5.87; and
(d)Mrs Robinson’s annual mental health care plan review with her general practitioner costs $125, a weekly average of $2.40.
This totals $91.52.
[782] Ex 5 pp 20-28.
There should be some moderation for vicissitudes and particularly the probability the more expensive component of that average figure, psychiatric consultation, will trend lower with time. This is reasonably achieved by opting to cap the allowable period beneath Mrs Robinson’s theoretical life expectancy of 30 years to the halfway point of 15 years.
Thus, applying a 15 year multiplier of 555 to the weekly average of $91.52, future expenses are assessed as $50,793.60.
Fox v Wood
Fox v Wood payments are agreed at $50,700.00.[783]
[783] SOC [17], Amended Defence [16].
Statutory Refund
The WorkCover refund to be deducted per s 269(3) of the Act is agreed to be $234,539.23.
Assessment Summary
Mrs Robinson’s overall damages award is therefore assessed as follows:

(a)

General damages

$41,200.00

(b)

Past economic loss

$676,335.78

(c)

Interest on past economic loss

$41,918.59

(d)

Past loss of superannuation

$37,384.14

(e)

Special damages

$74,782.94

(f)

Interest on special damages

$2,185.10

(g)

Future economic loss

$661,276.00

(h)

Future loss of superannuation

$66,954.19

(i)

Future expenses

$50,793.60

(j)

Fox v Wood

$50,700.00

Sub-total:

$1,703,530.34

Less WorkCover refund

$234,539.23

Total Damages Award

$1,468,991.11

Conclusion

The plaintiff should have judgment in the above amount.
Costs should follow the event subject to the cost implications of offers as between the parties.
My orders will allow for the potential need to hear and decide costs.
Orders
My orders are:
1. Judgment for the plaintiff in the sum of $1,468,991.11.
2. I will hear the parties as to costs, in the event they are not earlier agreed, at 10 am on 1 September 2017.

[2017] QSC 165

8 August 2017

Key Legal Topics

Areas of Law

Tort Law

Legal Concepts

Negligence

Duty of Care

Causation

Compensatory Damages

CITATION:	Robinson v State of Queensland [2017] QSC 165
PARTIES:	MARY-ROSE ROBINSON (Plaintiff) v STATE OF QUEENSLAND (Defendant)
FILE NO/S:	SC No 2 of 2014
DIVISION:	Trial
PROCEEDING:	Claim
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	8 August 2017
DELIVERED AT:	Cairns
HEARING DATES:	12-16 September 2016, 1-2 December 2016, 6 March 2017, 21 June 2017.
JUDGE:	Henry J
ORDERS:	1. Judgment for the plaintiff in the sum of $1,468,991.11. 2. I will hear the parties as to costs, in the event they are not earlier agreed, at 10 am on 1 September 2017.
CATCHWORDS:	TORTS — NEGLIGENCE — ESSENTIALS OF ACTION FOR NEGLIGENCE — SPECIAL RELATIONSHIPS AND DUTIES — EMPLOYER AND EMPLOYEE — where plaintiff alleged an accumulation of episodes of potential breach of duty — where employer failed to conduct timely and determinative action regarding vexatious complaints against plaintiff — where plaintiff experienced repeated managerial mistreatment — where plaintiff suffered psychiatric injury — whether the defendant corporation knew or acting reasonably ought to have known of the need to do that which it failed to do — whether the plaintiff has proved that but for the defendant’s breaches the plaintiff’s psychiatric injury would not have occurred — where the court held such breaches did occur — where court held that plaintiff’s psychiatric injury would not have occurred but for the defendant’s breaches Uniform Civil Procedure Rules 1999 (Qld) r 149(1)(e) Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 305B, 305D, 306O, 306P Workers Compensation and Rehabilitation Regulation 2014 (Qld) schs 7, 9, 11 Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, applied Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471, applied New South Wales v Lepore (2003) 212 CLR 511, cited Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486, applied Strong v Woolworths Limited (2012) 246 CLR 182, applied Tame v New South Wales (2002) 211 CLR 317, applied The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103, followed Vairy v Wyong Shire Council (2005) 223 CLR 422, applied Wyong Shire Council v Shirt (1980) 146 CLR 40, applied Wolters v The University of the Sunshine Coast [2014] 1 QdR 571, applied
COUNSEL:	J A Greggery for the plaintiff M T O’Sullivan for the defendant
SOLICITORS:	Connolly Suthers Lawyers (until 22 January 2017) and Organic Legal (from 23 January 2017) for the plaintiff McInnes Wilson Lawyers for the defendant

(a)	General damages	$41,200.00
(b)	Past economic loss	$676,335.78
(c)	Interest on past economic loss	$41,918.59
(d)	Past loss of superannuation	$37,384.14
(e)	Special damages	$74,782.94
(f)	Interest on special damages	$2,185.10
(g)	Future economic loss	$661,276.00
(h)	Future loss of superannuation	$66,954.19
(i)	Future expenses	$50,793.60
(j)	*Fox v Wood*	$50,700.00
Sub-total:	$1,703,530.34
Less WorkCover refund	$234,539.23
Total Damages Award	$1,468,991.11